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Columbus v. Brown

11/17/2005



{ } Jeffrey E. Brown, defendant-appellant, appeals from a judgment of the Franklin County Municipal Court, in which the trial court found appellant guilty, pursuant to a plea of no contest, to operating a vehicle under the influence ("OVI"), a first-degree misdemeanor and violation of Columbus City Code ("C.C.C.") 2133.01(A)(1).


{ } The record contains scant details of the underlying facts of this case, but it appears appellant was riding a bicycle on a sidewalk on December 18, 2004, when he was detained by a police officer. Appellant was subsequently charged with one count of OVI, in violation of C.C.C. 2133.01(A)(1), one count of failing to display a lamp on the front of a bicycle, in violation of C.C.C. 2173.05(A), and one count of failing to comply with an order of a police officer, in violation of C.C.C. 2109.01(A). We note that there is a reference in the record to a second OVI count that was dismissed.


{ } On March 14, 2005, appellant apparently filed a motion to dismiss the OVI count on constitutional grounds, although the record contains no copy of a written motion. After the trial court denied appellant's motion to dismiss the OVI count, appellant pled no contest to one count of OVI, in violation of C.C.C. 2133.01(A). The trial court found appellant guilty of OVI and dismissed the remaining two counts. The court fined appellant $300; sentenced him to 180 days incarceration, with 177 days suspended; suspended his driving privileges for six months, with limited privileges granted; and placed him on probation for one year. Appellant appeals the judgment of the trial court, asserting the following assignment of error:


The Trial Court erred and abused its discretion in denying the motion to dismiss in violation of Appellant's rights under the Fourteenth Amendment to the United States Constitution[.]


{ } Appellant argues in his assignment of error that the trial court erred in denying his motion to dismiss in violation of his due process rights under the United States Constitution. C.C.C. 2133.01(A)(1) provides:


(A) No person shall operate any vehicle within this City, if, at the time of the operation, any of the following apply:


(1) The person is under the influence of alcohol, a drug of abuse, or a combination of them.


C.C.C. 2101.51 provides:


"Vehicle" means every device, including a motorized bicycle, in, upon or by which any person or property may be transported or drawn upon a street or highway, except that "vehicle" does not include any motorized wheelchair, any electric personal assistive mobility device, or any device that is used exclusively upon stationary rails or tracks, or any device, other than a bicycle, that is moved by human power.


{ } Appellant seems to present two arguments. Appellant first argues that his due process rights were violated because the mandatory minimum penalty for operating a bicycle under the influence is not proportional to the crime, in that the penalty for operating a bicycle under the influence is the same for operating an automobile under the influence despite that the threat to society is not equivalent. Appellant also argues that, given this disparate threat to public safety between bicycles and automobiles, specifying bicycles to be included in the definition of "vehicle" is arbitrary and a violation of his due process rights. In support of these two arguments, appellant maintains that the legislation at issue is not based on factual data but bias and prejudice, and attaches to his appellate brief as evidence a bevy of statistics from the publication "Ohio Traffic Crash Facts" issued by the Ohio Department of Public Safety, which appellan

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